Covid-19 business criminal law and other issues in Belgium

1.1 General framework

On March 18, 2020, the Belgian government adopted urgent measures to limit the spread of COVID-19. These measures were confirmed by a Ministerial Decree of 23 March 2020, which has consequently been amended in respect of certain issues by Ministerial Decrees of 3 and 17 April 2020. 

The restrictions adopted by the government can be summarized as follows:

• Everyone is required to stay home in order to avoid person-to-person contact and the spread of the pandemic. Movement outside of an individual’s residence is prohibited, except for certain necessary and urgent matters i.e. to go to work (subject to the rule of teleworking (i.e. remote working) and social distancing); essential travel; and physical exercise in the open air;
• Social gatherings (in the broadest sense) are prohibited, whether indoors or outside, irrespective of whether they are private or public. Companies are advised to avoid gathering too many people in one place, for example by postponing meetings and replacing with video conferences and temporarily postponing large events to ensure social distancing rules are upheld;
• Companies - irrespective of their size - are obliged to facilitate remote working for every job position where this is possible. Please note that since 4 May 2020 remote working is no longer compulsory but only recommended in all non-essential companies, which must therefore adopt appropriate preventive measures;
• All shops and stores are closed with the exception of grocery stores, pet food stores, pharmacies, bookstores, gas stations and DIY and plant stores. As of 4 May 2020, fabric and textile stores are also permitted to reopen (subject to the same regulations). It is expected that all other stores will be allowed to reopen as of 11 May 2020, provided that they can do so safely and in compliance with health and safety regulations. Bars and restaurants will remain closed until at least 8 June 2020;
• Public transport must be organized in such a way that social distancing can be guaranteed. As of 4 May 2020, the wearing of a facial covering is mandatory on public transport for everyone above the age of 12;
• Travel within or outside of Belgium that is not considered necessary is prohibited. Internal checkpoints and border controls have been put in place to enforce this restriction. Travel restrictions may be partially lifted as of 18 May 2020, but most travel will still be limited and the border is expected to remain closed until at least 8 June 2020.

1.2 Employment legislation

In addition to the measures imposed by the government, an employer's general legal obligations under the occupational health and welfare legislation also apply. This means that every employer has a "duty of care" towards his workers, implying that appropriate preventive measures must be taken to ensure the safety and health of workers during the performance of their work.

Employers must also analyse the risks that the spread of the COVID-19 may entail for both the company and its stakeholders, so that risk management can be put in place and examine what steps can be taken to reduce the risk so that it is mitigate to the lowest level that is reasonably practicable. Such risk management is necessary for the development of appropriate prevention and safwty policies, with respect to employees, customers and business partners.

In Belgium, the “HSE requirements” refer to the principles of well-being at work. Well-being at work is defined as a set of factors concerning the conditions under which work is carried out including: safety at work, the protection of the health of the worker; the psycho-social load caused by work (including measures against violence and moral and/or sexual harassment); occupational hygiene; ergonomics; the maintenance of workplaces; and the measures taken by the company in respect of the environment.

The Act of 4 August 1996 concerning the well-being of sets out the general principles that should guide the employer when implementing the well-being policies – these range from the obligation to evaluate the risks and adopt proper protective measures, to the obligation to inform the workers and give them appropriate instructions. In particular, Article 5 provides for the following general principles of prevention:

• avoidance of risks,
• evaluate the risks which cannot be avoided,
• combat the risks at source,
• replace the dangerous with the safe or the less dangerous,
• give collective protective measures priority over individual protective measures,
• adapt the work to the individual, especially in respect of the design of workplaces, the choice of work equipment and the choice of working and production methods with a view, in particular, to alleviating monotonous work and work at predetermined work rate and to reducing the impact of such workstreams on individuals’ health,
• limit risks insofar as is possible, taking technical progress into account,
• limit the risk of serious injury by taking material measures, and giving these measures priority over any other measures,
• plan the implementation of the policy regarding the well-being of the workers at work with a view to a systematic approach in which the following elements, among others, are integrated: technology, organisation of work, work conditions, social relationships and the influence of factors related to the working environment;
• inform the workers about the nature of their work, the associated residual risks and the measures aimed at preventing or limiting these hazards when commencing employment and update the employee whenever necessary for protecting well-being;
• give appropriate instructions to the workers and establish guiding measures to reasonably guarantee compliance with these instructions;
• provide or ascertain the existence of appropriate health and safety signage at work whenever risks cannot be avoided or adequately limited.

The obligations detailed under the above paragraph are obligations that each employer must comply with in respect of his own workers in all circumstances.

The Social Inspectorate, which is composed of public officers belonging to the Ministry of Labour, has the task of monitoring employers’ compliance with all their obligations under employment law. The Social Inspectorate can decide when to inspect a company, and when to launch an investigation based on an official complaint. The Social Inspectorate can impose temporary closure of the business and/or administrative sanctions on the employer and managerial personnel. If required, the Social Inspectorate can transfer the matter to the public prosecutor who can initiate court proceedings with a risk of criminal sanctions (see below).

1.3 Criminal Law

The company itself may be held criminally liable and can be fined. This however does not exclude directors’ criminal liability. Whether a director will be held liable depends on whether they could have exercised any influence to prevent the infringement of the law.

A criminal sanction may be imposed, on grounds of a public prosecution, for all breaches of health and safety rules. The sanction usually takes the form of a fine, proportional to the number of workers employed by the company. Theoretically, the employer may also be punished by imprisonment, but this sanction is very rarely applied. There is a limitation period of 5 years to initiate a prosecution. The rules are expressed in broad terms giving rise to concern that it is difficult for employers to understand what exactly their obligations are.

Employers can be held criminally liable under the provisions of the Belgian Penal Code, Belgian Social Criminal Code or specific regulations. The conditions to implement such liability depend of the offences the directors are held liable for.

However, the following conditions must be fulfilled in all the cases where a criminal offence is committed. Indeed, corporate entities (i.e. companies) can incur criminal liability provided that the offence is attributable to the company both materially and morally. Natural persons (i.e. directors, senior management or legal representatives) can incur criminal liability provided that three elements are present:

1. specific act constituting an offence (material element);
2. intention to commit such act (moral element);
3. the act should be attributable to the director (culpability).

All the directors who participated to the offence may be held liable.

In practice, the criminal liability of directors will often be upheld in situations where directors gave instructions in relation to the offence or the latter was committed by their negligence (for example they did not give the appropriate instructions for the offence to be avoided, i.e. exposure or risk of exposure to COVID-19, pollution, work accidents and so forth), even if they themselves did not commit the illegal acts.

It is also important to note that criminal liability is personal: consequently, when several directors are involved in an offence, the court shall determine the personal responsibility of each director on the basis of a factual determination made in accordance with the material facts of the case rather than the articles of association which may assign certain duties and responsibilities to specific directors.

The Ministerial Decree of 23 March 2020 provides that infringements of the COVID-19 specific measures can lead to the sanctions as set out in article 187 of the Act of 15 May 2007 concerning civil security. These sanctions are imprisonment for a period ranging from eight days to three months and fines of up to EUR 4,000. In the event of repeated non-compliance, the government can order the company to close.

For employers, a violation of the measures adopted by the Ministerial Decree of March 23, 2020 will in almost every case also constitute a violation of the Act of 4 August 1996 concerning the wellbeing of employees during the performance of their work. This Act sets out a number of very general safety obligations, which will most certainly be violated in the case of a violation of the governmental measures adopted in relation to the COVID-19 pandemic. A violation of the Act of 4 August 1996 can lead to a criminal fine of up to EUR 8,000 or an administrative fine of up to EUR 4,000 per worker involved (with a maximum of EUR 400,000 representing a workforce of 100 workers).

A far more severe sanction applies if the public prosecutor can establish (1) a violation by an employer, (2) an accident or harm to a worker, and (3) the fact the latter was caused by the former.

If an employer is convicted on the basis of a violation of the Act of 4 August 1996, it is competent that an order imposing the closure of the business may be handed down. Such closure could be for a period of one month, up to three years. Another possible sanction could be a ban on the exercise of certain professions for a period of up to three years.

At the time of writing, we are not aware of any actual prosecutions of businesses or senior management relating to breaches of Ministerial Decree or pre-existing health and safety laws by a company.

It’s important to note that due to the measures taken by the Belgian Government and by judicial authorities themselves, access to courts, tribunals and court registries is limited to the absolute minimum. Most hearings have been suspended; only urgent cases or cases that do not require a hearing are being dealt with.

However, the Social Inspectorate has already imposed temporary closure of companies for non-compliance of the security measures.

For those employees whose job does not allow remote working, social distancing rules must be strictly respected (i.e. at least 1.5m of distance between employees at all times).

As already stated, employers (i) need to conduct risk assessments in order to provide employees with a safe place of work and (ii) take all necessary measures to promote and safeguard the well-being of its employees in the performance of their work.

However, in practice, it will be for each employer to assess which measures it should reasonably take in order to manage the current pandemic. In other words, each employer is obliged to examine, in parallel with the governmental measures, which additional preventive measures still have to be taken at company level.

In this regard, measures that an employer could consider putting in place are those determined in the advices issued by the World Health Organization and the Belgian Federal Ministry of Labour and Employment, 1 https://emploi.belgique.be/fr/actualites/update-coronavirus-mesures-de-prevention-et-consequences-sur-le-plan-du-droit-du-travail which include in particular:

• ensure clean and hygienic workplaces (e.g. office surfaces, keyboards) by regularly disinfecting them;
• ensure that workers apply good hand hygiene by providing disinfectants in visible areas;
• ensure good respiratory hygiene in the workplace by using tissues when coughing or sneezing;
• inform workers that it is preferable that they do not come to the office if they have symptoms of illness such as fever and/or cough;
• promote remote working;
• provide instructions and an action plan in case someone gets sick with signs of coronavirus infection,

In addition, the Federation of Enterprises in Belgium established a guide with recommendations to help the employers ensure the safety of their employees. 2 https://www.feb.be/globalassets/actiedomeinen/economie--conjunctuur/economie--conjunctuur/goed-voorbereid-herstarten/generieke-gids_fr_2020-04-23v1_compressed.pdf

The civil liability regime is governed in Belgium by the general provision contained in Article 1382 of the Civil Code. On these grounds, any person who is able to prove that they have suffered harm can obtain a reparation thereof against the person(s) who caused it, on condition that the latter’s behaviour implies a fault and causation can be determined. The reparation is often a sum of money. Running parallel to criminal and/or administrative sanctions is the right for an employer to be held liable under the civil law.

Depending on how businesses react and adjust to the COVID-19 crisis there is significant scope for civil claims and threat of claims. It is not possible to identify every sub-type of claim that could potentially be brought in every circumstance, but we identify below some key categories and risks of claims which may arise from employees, customers or business partners arising from breaches of the above restrictions and regulatory requirements. 

Clearly, there may also be contractual claims arising from how businesses deal with staff and pay during and in the aftermath of lockdown.

Claims by staff related to unsafe working conditions

• The employers who are at the greatest risk of facing potential civil claims are the business and the public authorities which have continued to operate during lockdown, including healthcare and social care providers, other key public services (e.g. police, fire and ambulance services) and businesses where employees have continued to operate from their normal place of work, such as food retailers and distributors of online shopping.

The employees of companies in key sectors may consider that:

• the risk of exposure to COVID-19 has caused them to suffer from mental health issues and stress as a result of having to attend work (including via public transport with its own attendant risks) and expose themselves (and vicariously their families) to the virus;
• they should have been provided with some or better PPE;
• they should have been given better training; and/or
• their workplace should have been adjusted to create more distance between employees. 

Under general principles of torts law, liability will only exist if the plaintiff shows evidence that :

• a fault has been committed by the employer;
• the plaintiff has suffered a damage;
• there exists a causal link between the fault and the damage.

For those who can demonstrate that they contracted the virus through work because of a fault committed by the employer, the risk of claims for substantial damages will increase.

Claims connected to the transmission of Covid-19 are likely to raise complex questions of causation. For each case of Covid-19, there could be numerous potential infection sources. By making prudent adjustments to the workplace and encouraging social distancing, employers can not only reduce the risk for their employees, but also make it more difficult to prove that transmission occurred at the place of employment, raising the causation hurdle should an unfounded claim be filed.

Claims by members of the public

Such claims must be founded on breach of a duty owed by the business, whether established by statute, contract or otherwise. Categories of potential claims include where members of the public were subjected to unsafe conditions. This is a concern for businesses that provide in-person services, such as entertainment venues, hospitality, transport, leisure and tourism.

Collective redress

Actions for collective redress (class action). In principle, class actions are not permitted under Belgian law. For actions to be admissible, the claimant must fulfil the "personal interest" requirement (articles 17 and 18 of the Judiciary Code).

An important exception to this principle was introduced by Chapter 2 of Book XVII of the Code of Economic Law, which was entered into on 1 September 2014, allowing actions for collective redress under Belgian law, albeit in a strictly limited set of cases.

In summary, this action allows all consumers who have suffered damage as a result of a common cause to obtain collective compensation for the individual damage suffered. Consumers will be defended by a recognized representative of the group.

Collective actions. Joined actions, on the contrary, are permitted in Belgium. A joined action is where multiple plaintiffs either jointly bring an action or request the court during proceedings to join their individual actions. This is only possible, however, if their claims are so closely connected that it is appropriate to try them together, in order to avoid potentially incompatible decisions.

Actions for the protection of a collective interest. This is an action brought by an organisation or by a group of people, regardless of whether they intend to achieve an objective of general interest, but with the aim to realise an objective that goes beyond the personal interests of the individual members of the organisation or group. Since January 2019, the law extended these actions for the protection of a collective interest, under certain conditions, to all legal entities whose purpose is to protect human rights or fundamental freedoms recognised by the Belgian Constitution or international treaties binding on Belgium.

Many of the events that lead to claims by employees or customers will be particularly suited for collective proceedings or class actions. This is due to both the number of potential claimants impacted by a single event and issues of common fact or law in relation to each claim.